Thursday, May 16, 2013

Florida: A sperm donor is not a parent -- so far, so good. But a nonbio mom is not a parent, and that's the real problem

In an opinion rendered yesterday in A.A.B. v. B.O.C., a Florida appeals court has reiterated that a sperm donor is not a parent. That's what the Florida statute says, and that's what a previous appeals court held more than a decade ago. A.A.B. applied that statute to find that the trial court was therefore wrong to rule that B.O.C. was the father of 12-year-old C.D.B. in spite of the oral agreement of the parties that he was merely a donor. The appeals court rightly found no distinction based on the fact that the parties performed the insemination at home and not through a doctor.

That's the so far, so good part. The default position that a sperm donor is not a parent is the one that comports most of the time with the intent of all involved at the time of insemination (although I prefer a statute that also allows the donor to be considered a parent if there is a written agreement to that effect).

The real problem, however, is lurking in the facts of the case. B.O.C. is the brother of A.A.B.'s former partner, S.C. S.C. and A.A.B. split up when their child was three. They shared custody for awhile until A.A.B. cut off all contact between S.C. and the child. Florida law does not permit an award of custody or visitation rights to a nonbio mom in the position of S.C. In a 2006 case from a different Florida appellate district, Wakeman v. Dixon, the court found a written co-parenting agreement between a lesbian bio mom and her partner unenforceable.

So S.C. could not file for custody, and so she pursued a different legal avenue. Obviously, if her brother were found a legal parent he could arrange, during his time with the child, for S.C. to continue her parental relationship.

This case reminds me of a different series of all too common cases, not in an LBGT context. Woman gives birth and places child for adoption, voluntarily relinquishing her parental rights. Subsequently, she gets back together with the child's biological father and wishes she had not relinquished her rights. The law makes her relinquishment irreversible. So the bio dad makes a statutory or constitutional (or both) parentage claim as a way of blocking or undoing the adoption. (In fact, Florida has such a case in which the bio parents got back together when the baby was less than a week old and the bio dad unsuccessfully tried to block the child's adoption).

As I read all those cases, the real issue is that the mother changed her mind. But some states are so quick to accept irreversible relinquishments that she has no recourse. In my mind, that's the real problem in those instances. I do believe that an infant should have a permanent family as soon as possible, but I also believe that giving a birth mother a reasonable period of time to get her life together will prevent unnecessary separation of the mother and child. And I say this as an adoptive parent, so it's not that I think adoption is bad for children. Many states do allow a birth mother to change her mind within 30 days, and to me that strikes a decent balancing of all the interests.

In the cases I'm describing where the bio dad sought custody, the mother did change her mind within 30 days, but the law did not give her any recourse. So that's the similarity to A.A.C., where the nonbio mom lacked recourse and used what legal theory she could, through her brother, to try to continue a relationship with her child. And it's that lack of recourse that's the problem in Florida.

Giving B.O.C. parental rights would have been wrong. If a known donor can get parental rights just because the insemination was done at home rather than through a doctor, it will make vulnerable the planned families that lack the money to go through the medical establishment or otherwise choose the most simple method of ART. But denying S.C. a relationship with her child is the real crime here, and Florida needs to fix that through reform of its parentage laws or through recognition of de facto parents. All the court rulings against de facto parents in Florida come from intermediate appeals courts; the Florida Supreme Court rulings involve other third parties, like grandparents, seeking visitation rights with their grandchildren.

It would be a good thing for the Florida Supreme Court to grant review of a lesbian co-parent breakup case and to differentiate between those who plan for and raise a child together and those true third parties who seek to interfere with a parent's rights to raise her child. But the ruling handed down yesterday doesn't raise that issue, and it should stand.

And one more thing....a couple in the situation of S.C. and A.A.B. could not do a second-parent adoption in Florida at the time. They could do it now and that would solidify their family. But lots of couples don't do second-parent adoptions --- lack of money, familiarity with, access to lawyers; skepticism about exposing their family to a court system not reliably supportive of LGBT families; or just waiting until perhaps their family is complete with a second child. Availability of second-parent adoption is awesome, and it's the gold standard for portability of parentage across state lines, but it doesn't change the importance of recognizing parentage without it.

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About Me

I have been working on gay and lesbian family law issues for more than 35 years. I teach at American University Washington College of Law, but for the 2011-2012 academic year and the Fall Semester 2012 I was the McDonald/Wright Chair of Law at UCLA. I have published many law review articles and book chapters. BEYOND (STRAIGHT AND GAY) MARRIAGE is my first book.